Employment Law Blog

Madison, WI – March 17, 2015 – On March 17, 2015, Attorneys James Walcheske and Jesse Dill of the Brookfield, Wisconsin employment law firm Walcheske & Luzi, LLC presented a donation of $500 to End Domestic Abuse Wisconsin. The firm’s donation was the result of Attorneys Walcheske’s and Dill’s December 16, 2015 webinar presentation before the Wisconsin State Bar titled “Nevermore: Employment Law and the Ray Rice Case.”

Following a series of website blog posts addressing developments in the National Football League, domestic violence, and employment law, Walcheske & Luzi, LLC’s attorneys presented on legal issues affecting the workplace and involving domestic violence. The presentation was conducted as a webinar through the State Bar of Wisconsin. The State Bar of Wisconsin agreed to donate a portion of the proceeds from the presentation to End Domestic Abuse Wisconsin.

“We are very happy that we were able to direct the interest in the topic of domestic violence in the workplace to a very worthwhile cause,” said James Walcheske, a founding partner of Walcheske & Luzi, LLC.

Walcheske & Luzi, LLC represents employers and employees in all aspects of the employment relationship. Attorney Dill has a long history working with End Domestic Abuse Wisconsin, dating back to his days as a legal intern for the non-profit and while he attended Marquette University Law School. Attorneys Walcheske and Dill are residents of Wauwatosa, Wisconsin.

Most employers know about the federal Equal Employment Opportunity Commission and the state Department of Workforce Development, Equal Rights Division. These are the federal and state agencies that process complaints of unlawful employment discrimination under federal and state laws. But did you know that a municipality may have an established entity to address complaints of discrimination in violation of a local code?

Such is the case with Madison’s Equal Opportunity Commission. Madison is in the unique position of offering employees discrimination protections through its municipal code, Section 39.03 of the Madison General Ordinances. The Madison EOC works in much the same way as the ERD with a complaint, investigation, determination, and hearing. However, Section 39.03 offers some unique protections not found in Wisconsin or Federal law. For example, state and federal law protect individuals from discrimination in employment on the basis of sex, age, race, color, religion, national origin, and disability. Of course, state law offers unique protections in arrest and conviction record and marital status. The Madison EOC covers all of these as well. But the Madison EOC takes it a step further and also protects individuals on the basis of familial status, student status, physical appearance, political beliefs, and less than honorable discharge.

Recently, Madison Ald. Anita Weier announced a proposal to expand the protections of Madison’s EOC to include the homeless and atheists. This would prohibit discrimination in employment decisions on the basis of one’s status as a homeless individual or as an atheist. The homeless protections are new and unique to the Madison EOC. The atheist protections clarify at the municipal level what arguably already exists through state and federal law. If added and an employer is found to have violated Section 39.03, it may be ordered to pay lost wages, compensatory damages, and attorneys’ fees. All are good reasons to pay attention to your local municipal code if you are a Madison employer.

Walcheske & Luzi announced today that three of its attorneys were recently honored by Super Lawyers as Rising Stars in Employment Law. Attorney Jesse R. Dill joined Attorneys James A. Walcheske and Scott S. Luzi on the list this year. This is the third year in a row James Walcheske and Scott Luzi have been recognized by Super Lawyers.

Super Lawyers relies on peer recognition and third-party research to assess attorneys on a state-by-state basis. Candidates are evaluated on indicators that include verdicts and settlements, experience, and outstanding achievements. The final selections for Super Lawyers recognize no more than 2.5 percent of attorneys either 40 years old or younger or in practice for 10 years or less.

“We are honored to again have a number of our attorneys recognized by Super Lawyers,” said Managing Partner James Walcheske. “Accolades such as this are the result of a lot of hard work for our clients,” added Walcheske.

Two things that I can safely say Abercrombie will do this year: (1) violently assault my nostrils for daring to walk within a two-mile radius of an Abercrombie store (they seriously must use a cologne fogger); and (2) be involved in a Supreme Court case involving religious discrimination.

Sadly not too far afield from my “fogger” comment, this case involves Abercrombie’s (eye roll in 3, 2, 1) “Look Policy,” that its sale-floor employees (whom it refers to as “Models”!) are required to comply with to promote its brand, which “exemplifies a classic East Coast collegiate style of clothing.” Gag. Employees who do not comply with the Look Policy are subject to discipline up to and including termination, because wearing inconsistent clothing “inaccurately represents the brand, causes consumer confusion, fails to perform an essential function of the position, and ultimately damages the brand.”

Samantha Elauf interviewed for a Model position at Abercrombie. At the time, she was a seventeen-year-old practicing Muslim who wore a hijab for religious reasons. During the interview, Elauf did not explicitly tell the Assistant Manager, Heather Cooke, that she was Muslim or that she wore her hijab for religious reasons, though Cooke did assume that Elauf was Muslim and that she wore a hijab for religious reasons.

After the interview, Cooke rated Elauf as being recommended for hire, but she took the hiring decision up the chain due to concerns over whether Elauf could wear her hijab on the sales floor. Cooke’s District Manager told her that Elauf could not be hired because her hijab went against the Look Policy. Cooke testified that the District Manager further told her to change Elauf’s interview score on the “appearance section” so that she was no longer recommended for hire. Yada, yada, yada, Elauf finds out why she wasn’t hired and boom – there’s your lawsuit.

The EEOC argues that Abercrombie’s refusal to hire Elauf constituted religious discrimination and that its refusal to except her from its Look Policy on account of her hijab constituted a failure to accommodate her religion. Abercrombie argues that Elauf never explicitly told her that she was Muslim or that she wore a hijab for religious (in contrast to other, potential) reasons. The conflict between the two becomes the issue presented: Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.

Notice is a constant issue in the workplace, so it’ll be interesting to see how this plays out. Stay tuned.

UPS loves logistics, but allegedly not accommodating pregnant employees. As previously promised, an upcoming Supreme Court case to keep an eye on for its potential impact to the workplace is Young v. United Parcel Service. At issue is UPS’s policy (pursuant to its internal policies and a collective bargaining agreement) of offering light-duty work assignments (temporarily or permanently) only to: (1) employees who were injured on the job; (2) employees who were eligible for accommodations under the Americans with Disabilities Act; and (3) drivers who had lost their DOT certifications because of failed medical exams, lost drivers licenses, or involvement in motor vehicle accidents. UPS did not offer such assignments to employees with pregnancy-related limitations. Cue the lawsuit.

The issue presented: Whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

Notably, the United States weighed in by filing not one, but two amicus curiae briefs. The first brief, which was filed in May, said that the question presented does not need to be answered by the Supremes because the solution can be found in the Americans with Disabilities because … (quick self-test on if you know the answer) … after the ADA Amendments Act of 2008, pregnancy-related medical conditions can constitute disabilities that require accommodation (or at least engaging in the interactive process in an attempt to find a reasonable accommodation). Essentially, the U.S. stated that the ADA, after the ADAAA, overlaps and fills-in the gaps in the PDA, OK?

In its second brief, which was filed in September, the U.S. took a much-hardened stance, unequivocally stating, “A plaintiff can establish a violation of Title VII’s prohibition of sex discrimination by introducing direct evidence of an employer’s policy that treats a class of nonpregnant employees with work limitations more favorably than it treats employees with comparable limitations related to pregnancy.” The difference in tone is likely attributable to the EEOC’s issuance of guidance on pregnancy discrimination in July, which made this stance a bit more clear, even if it wasn’t necessarily reflected by the courts.

We’ll wait and see what happens with this case, but it certainly opens the door for much broader pregnancy-related protections, similar to (though likely not as great as) what we’ve seen with the Americans with Disabilities Act in more recent years.

Now that it’s getting darker, colder, and generally more and more questionable why we live in this State, it’s more important than ever to rally around things that can at least distract us from the bleakness outside, if not entertain us altogether. With that, let’s take a moment to preview something to look forward to: the seven (count ‘em, 7!) employment law-related cases the Supreme Court will be deciding in its current term, which just got underway.

*Clicking on a case name will take you the corresponding SCOTUSblog page, where you can find additional information. Full credit goes to the writers of that blog for issue summaries in this post (brief commentary is all our own).

The issue presented: Whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

Spoiler Alert! Due to the importance of this case in the everyday workplace, we’ll be highlighting this case with a more in-depth preview (more to look forward to!).

The issue presented: Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.

The issue presented: Whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s mandatory duty to conciliate (aka, try to resolve) claims before filing suit.

This one will be interesting, because the EEOC has been accused of suing first and negotiating later, with the arguable result of unnecessarily driving up litigation expenses for the companies on the wrong end of the EEOC lawsuit.

The issue presented: Whether certain statutory protections codified at 5 U.S.C. § 2302(b)(8)(A), which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information.

This is a whistleblower case involving the disclosure of “Sensitive Security Information,” which is sensitive, but unclassified, information. Disclosure of Sensitive Security Information is prohibited by regulation, but creates the question of whether its disclosure is “specifically prohibited by law.” If it is, then the disclosure would not provide whistleblower protections to the disclosing individual.

The issue presented: Whether, when construing collective bargaining agreements in Labor Management Relations Act cases, courts should: (1) presume that silence concerning the duration of the retiree healthcare benefits means the parties intended those benefits to vest (and therefore continue indefinitely) (as held by the Sixth Circuit); (2) require a clear statement that healthcare benefits are intended to survive the termination of the collective bargaining agreements (as held by the Third Circuit); or (3) require at least some language in the agreement that can reasonably support an interpretation that healthcare benefits should continue indefinitely (as held by the Second and Seventh Circuits).

The issue presented: Whether a federal agency must engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation.

Last month, the Seventh Circuit upheld a district court decision in Wolf v. Walker that overturned Wisconsin’s 2006 state constitutional amendment banning same-sex marriages. Last week, the Supreme Court denied review of the case, which means the decision stands. As a result, Wisconsin now recognizes same-sex marriages.

Prior to the Wolf v. Walker decision, there was confusion as to the leave rights of Wisconsin employees who obtained marriage licenses from states that recognized same-sex marriages. This was because the FMLA regulations defined spouse as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides[.]” Thus, an employee with a same-sex spouse living in Minnesota, where same-sex marriage was previously recognized, but working in Wisconsin, where it was not recognized, would arguably not qualify for FMLA benefits. This could create a significant amount of confusion for Wisconsin employers near the state border who had employees residing across state lines and a part of same-sex marriages.

Moreover, Wisconsin had a quirk in its state law in this regard as well that was clarified a few months ago. Under a 2009 law, Wisconsin recognized domestic partnerships for same-sex couples. The Wisconsin Family and Medical Leave Act extended benefits to eligible employees for care of the serious health condition of a domestic partner. Proponents of the state constitutional amendment banning same-sex marriages argued this law conflicted with the state constitution and, thus, same-sex domestic partnerships were not eligible for benefits under the WFMLA. The domestic partnership law was challenged as unconstitutional, and later upheld, in a Wisconsin Supreme Court case from earlier this year. This had meant that an employee who was in a same-sex relationship could qualify for state leave entitlements as a domestic partner but not as a spouse. Whew.

The procedural end to Wolf v. Walker clarifies that all married individuals in Wisconsin are also eligible to qualify for FMLA benefits. There are, of course, other conditions that must be met, including the number of employees employed by the employer and the duration of time the employee has worked for the employer. But this decision adds a measure of clarity for employers trying to navigate the ins and outs of family and medical leave.

Recall that under the WFEA, it is unlawful for an employer to discriminate against an employee on the basis of the individual’s arrest or conviction record. However, employers can take adverse action where the arrest or conviction is substantially related to the charge or conviction. That is, if the circumstances of the job are substantially related to the circumstances of the crime, the employer will be able to take adverse action.

In some circumstances, the comparison is easy for the employer to make. For example, a conviction for child abuse will preclude the individual from working with children. Additionally, the WFEA has been repeatedly interpreted so that the crime of theft demonstrates untrustworthiness in many other settings and allows an employer to prevent employment in a wide variety of positions.

This leaves us with the circumstances suggested by the Ray Rice situation. Many are familiar with the set of elevator videos showing Rice punching his fiancée. These circumstances raise a good question: In Wisconsin, is an employee convicted of domestic abuse protected by the WFEA?

The answer, of course, is “it depends.” The law has been interpreted to find that misdemeanor disorderly conduct/domestic abuse is not substantially related to the duties and responsibilities of a driver hired to deliver food products to fast food restaurants. In another case, a conviction for third-degree sexual assault, use of a dangerous weapon, first-degree recklessly endangering safety, and false imprisonment involving an incident with another individual with whom the offender had a personal relationship was deemed not substantially related to the job of a lift driver in a warehouse. In these types of cases, the substantially related defense has been interpreted to look at not only the elements of the crime but also the factual circumstances as well. Facts such as where the crime was committed and the relationship with the victim may be relevant to the analysis.

Thus, employers who intend to rely on this defense should take a close look at the position at issue, the elements of the crime, and even the factual circumstances of the crime to make a determination of whether the substantially related defense applies.

This is the first in a two-part blog post series regarding Wisconsin employment law and the recent scandals with the National Football League and players in the justice system.

I think it is safe to say that everyone is now familiar with the Adrian Peterson scandal currently rocking the National Football League. Peterson was recently deactivated by the Minnesota Vikings (and then reactivated) following news that a warrant was issued for his arrest by a Texas court on charges of child abuse. Based on my personal observations, sports and news talk outlets seem to be divided on the role of Peterson’s employer, the Minnesota Vikings, in responding to these charges. Some have argued for Peterson to receive “due process” and let the legal system run its course before passing judgment on what the Minnesota Vikings should do about Peterson. Others have said that the Vikings should not let Peterson play because of the information already available to his employer.

Wisconsin presents some unique discussion on private sector, at will employment relationships under similar circumstances because the Wisconsin Fair Employment Act protects individuals from discrimination on the basis of the individual’s arrest record. That is, an employer cannot take an adverse action against an employee based on information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.

However, there is an important caveat to arrest record discrimination cases in Wisconsin known as the “Onalaska defense.” This defense developed out of the 1984 Wisconsin Court of Appeals case of City of Onalaska v. LIRC. The Onalaska court held that it is not arrest record discrimination for an employer to take an adverse action because it concludes from its own investigation and questioning that the individual committed an offense. That is, an employer does not have to wait for the justice system to run its course before determining how misconduct that occurs away from work may affect the employment relationship. Doing so may actually open the employer up to liability for the related protected class of conviction record discrimination. Rather, an employer can rely on its own investigation and conclusions to determine whether adverse action is appropriate under the Onalaska defense.

Historically, employees who quit a job to work for a competitor company were no longer welcome to return to the original employer. A simple Google search of the term “boomerang employee” will quickly reveal that forward thinking companies, adapting to a still slowly recovering economy, are bucking traditional ideas of employer loyalty by re-hiring former employees.

The definition of a boomerang employee is simple: it is when an employee quits a job (for better pay, to go back to school, to have a family) and then is re-hired by that employer at a later date.

Boomerang employees can provide excellent benefits to employers. These are people who already know the culture of the employer and probably the basic operating structure of the business. Early research shows boomerang employees are often happier than non-boomerang employees because they learned the “grass isn’t greener” at a different employer.

Employees should take care not to burn any bridges when leaving a job in the event they may want to return someday. On the flip side, employers should “leave the door open” to possible boomerang employees by conducting exit interviews to provide information about future accommodations such as telecommuting. Employers are assisted by technology in re-hiring employees because programs like LinkdedIn allow for easy communication after an employee has left.

However, there can be risks in hiring boomerang employees. For example, an employee who did not leave on good terms may create resentment among other employees when returning.

High profile boomerang employees like LeBron James have highlighted what is likely to be an important employment trend in the future. Stay tuned as we follow this issue.

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Walcheske & Luzi, LLC Attorneys Honored by Super LawyersWalcheske & Luzi announced today that three of its attorneys were recently honored by Super Lawyers as Rising Stars in Employment Law. Attorney Jesse R. Dill joined Attorneys James A. Walcheske and Scott S. Luzi on the list this year. This is the third year in a row James Walcheske and Scott Luzi have been […]

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